Madras High Court
D. Pandi vs The Dhanalakshmi Bank Limited, By Its ... on 16 February, 2001
Equivalent citations: AIR2001MAD243, (2001)1MLJ750, AIR 2001 MADRAS 243, (2001) 1 MAD LJ 750, (2001) 2 MAD LW 334, (2001) 2 BANKCAS 347, (2002) 1 BANKJ 152, (2002) 2 BANKCLR 836
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Second defendant in O.S.No. 493 of 83 on the file of the Additional Subordinate Judge, Madurai is the appellant in the above appeal. The plaintiff/respondent herein filed the said suit for recovery of a sum of Rs.6,73,577.01 with subsequent interest at 18 per cent per annum from the date of the plaint till date of realisation, for sale of the immovable and movable properties in the Schedule A, B and C of the plaint and for appropriating the sale proceeds towards the decree amount in case the defendants failed to pay the decree amount within time. The plaintiff has also prayed for for passing of a personal decree against defendants 1 to 5 in case the sale proceeds found insufficient for the decree amount.
2. The case of the plaintiff as seen from the plaint is briefly stated hereunder:-
The plaintiff is a Banking company as defined under the Banking Regulation Act, 1949 carrying on business with its Head office at Trichur and Branch office among other places including the one at Door No. 105, Mount Road, Madras-2. The first defendant is the sole proprietor of M/s Plastic Crafts, a small scale industry at Madras. The first defendant had applied to the plaintiff Bank for the grant of Term Loan to the tune of Rs.2 lakhs and also cash credit facilities upto a limit of Rs.2 lakhs to be utilised as working capital for the new small scale industry for the manufacture of plastic goods. Pursuant to the request, the plaintiff Bank sanctioned a Term Loan to the tune of Rs.2 lakhs and also cash credit facility upto the tune of Rs.2 lakhs on 22.10.80. It was agreed inter alia between the plaintiff and defendants 1 to 3 that documents relating to the two loans have to be signed by the defendants 1 to 3 and that the third defendant had agreed to stand as a guarantor for and on behalf of the first defendant for the two loans sanctioned. The defendants 1 and 2 had executed a promissory note for Rs.2 lakhs on 23.12.80 in favour of the plaintiff Bank, agreeing to pay interest at 11.85 per cent per annum with quarterly rest towards the Term Loan. The defendants 1 to 3 had also executed other documents on 23.12.80 such as Instrument of pledge of machineries, Trust letter, Deed of pledge, Deed of pledge for advances against the furniture and also Term Loan agreement. The said documents have been signed by the defendants 1 to 3 and all of them knew fully well about the contents of those documents and also the purpose for which those documents were executed in favour of the plaintiff bank. The first defendant failed to repay the amount as agreed to. The total amount payable by the defendants towards the said two loan accounts comes to Rs.6,73,577.01 including interest as agreed by them and calculated upto 19.12.83. The plaintiff has therefore filed the suit for recovery of the said amount.
3. Second defendant filed a written statement wherein it is stated that he never stood as a guarantor for and on behalf of the first defendant in respect of the alleged facilities stated to have been given to him by the plaintiff bank. He never agreed to do so. The 2nd defendant never agreed for advancing loans by the plaintiff who ought not to have sanctioned any loan to the first defendant on the basis of the guarantee alleged to have been given by him. The 2nd defendant never signed or executed either promissory note or any other deed including mortgage deed. He never signed in any promissory note on 23-12-80 or any guarantee letter etc., as alleged in favour of the plaintiff for the purpose of advancement of cash credit limit loan by the plaintiff to the 3rd defendant. He has not signed or executed any hypothecation (goods) agreement on 23-12-80 or promissory note on 4-10-80 as claimed. All the signatures alleged to have been signed by the 2nd defendant in the documents are all clear forgeries. The second defendant is not at all connected with the suit transactions; accordingly prayed for dismissal of the suit. Though 4th defendant has also filed a written statement, in view of the issue which we are going to consider in this appeal, it is unnecessary to refer the same.
4. On the side of the plaintiff, one Veeraraghavan, branch Manager, was examined as P.W.1 and Exs.A-1 to A-34 were marked in support of their claim. On the other hand, 2nd defendant alone got himself examined as D.W.1, apart from marking Exs. B-1 to B-5 in support of his claim. The learned Subordinate Judge, after framing necessary points for consideration and after considering the evidence, both oral and document, accepted the case of the plaintiff and granted preliminary decree with costs as claimed. The borrower, first defendant and defendants 3.4 and 5 who stood as guarantors did not contest the suit; accordingly they were set ex parte before the trial court. As stated earlier, 2nd defendant alone filed a written statement, contested the suit and filed the present appeal.
5. Heard the learned counsel for the appellant as well as respondent.
6. Mr.S.A.Rajan, learned counsel appearing for the appellant, has raised the following contentions:-
(i) In the light of the stand taken by the 2nd defendant, namely, denying his signatures in all the documents in question, the plaintiff bank ought to have taken appropriate steps to prove the signature of the 2nd defendant in those documents. The plaintiff failed to comply with the provisions contained in Sections 67 and 73 of the Indian Evidence Act, 1872.
(ii) The learned Subordinate Judge failed to follow the procedure prescribed in Sections 45 and 73 of the Indian Evidence Act;
(iii) Inasmuch as P.W. 1, manager of the bank, is an interested person and who was examined after 10 years, his evidence ought not to have been accepted by the Court below;
(iv) Since the onus of proof of the signature is on the plaintiff under Sections 67 and 73 of the Indian Evidence Act, the plaintiff bank could have sent the signature for opinion of the expert. On the other hand, Mr. R. Sreekrishnan, learned counsel for respondent Bank, would contend that.
(i) The plaintiff bank has discharged its initial burden;
(ii) P.W.I being the manager of the bank and in whose presence defendants Ho 5 signed and executed the suit documents, his evidence is acceptable;
(iii) Since the 2nd defendant being a co-obligant, he could have summoned the other defendants to prove his stand and in view of the fact that except himself all others were set ex parte, his defence has not been substantiated;
(iv) Though an order of interim attachment was made by the trial Court, the 2nd defendant did not take any step to vacate the interim order and the said order was made absolute. It clearly reveals the conduct of the 2nd defendant in not taking any steps for vacation of the interim order.
7. We have carefully considered the rival submissions.
8. We have already stated that the second defendant alone has filed the present appeal, though the first defendant who borrowed money and other defendants were set ex parte by the Court below. The only defence taken out by the second defendant is that the alleged signature found in the promissory note, hypothecation deed and other documents is forged one and he never stood as a guarantor for and on behalf of the first defendant in respect of the alleged facilities stated to have been given to him by the plaintiff. This has been stated so in his written statement and in the evidence as D.W.1. Further, as D.W.1, the 2nd defendant has deposed that he did not visit the plaintiff bank at any point of time and sign the documents, namely, Exs.A-1 to A-9 as claimed by the plaintiff. He further deposed that his name is Pandian and he never signed as pandi. Further, as rightly observed by the Court below, pursuant to the notice sent by the plaintiffs counsel, the 2nd defendant's counsel sent a reply under Ex. A-28 dated 14.3.1983 wherein the 2nd defendant has been mentioned as D. Pandi. Rishabam, Sholavandan Post, Nilakottai Taluk, Madurai District. It is clear from Ex.A-28 that the said reply had been sent on behalf of D. Pandi. The second defendant has also filed three documents, namely. Exs. B-1 to B-3 in order to prove his signature. Ex. B-1 dated 7.2.79 is the Sale-deed executed by one Gomathi Ammal in favour of Sadacharam alias Pandian and another. Ex. B-2 dated 6.1.78 is the receipt issued by Central Co-operative Bank, Madurai for payment of jewel loan amount. Ex. B-3 dated 17.6.76 is the identity card with signature of the 2nd defendant issued by Canara Bank. The 2nd defendant has admitted his signature found in those documents. The learned Subordinate Judge after verifying the signature in those three documents, has observed that there is some discrepancy and also contradictory in each other. Further, on the request made by the 2nd defendant, the learned Subordinate Judge has called for the
9. Inspite of abundant material, Mr. S.A. Rajan, learned counsel appearing for the appellant, by relying on Sections 45, 67 and 73 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Act"), would contend that the Court below failed to follow the procedure prescribed therein and the course adopted by him cannot be accepted.
"Section 67..Proof of signature and handwriting of person alleged to have signed or written document produced;"
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents as is alleged to be in that person's handwriting must be proved to be in his handwriting.
Section 73. Comparison of signature, writing or seal with others admitted or proved;" in order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of that court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modification, to finger impressions."
"Section 45. Opinion of experts:-When the court has to form an opinion upon a point of foreign law, or of science or art; or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger-impressions are relevant facts. Such persons arc called experts."
By referring Section 67 of the Act, learned counsel for the appellant, would contend that it is for the plaintiff to take steps to prove the signature of the 2nd defendant. By referring Section 73 of the Act, he would also contend that the Court below has not followed the procedure prescribed therein. Likewise, by referring Section 45, he would further state that the learned Judge ought to have referred the signature of the 2nd defendant for expert's opinion. Now I shall consider the decisions relied on by Mr. S.A. Rajan, learned counsel for the appellant in support of his contentions, in State of Gujarat v. Vinaya Chandra, AIR 1967 S.C. 778. Their Lordships by referring Section 45 of the Act, have held thus"-
(para 10) "10.... A Court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a finding about a person's writing in a certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held that the sole evidence of an handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It was therefore not right for the learned Judge to consider it unsafe to rely upon the evidence of the complainant in a case like this, i.e., in a case in which no handwriting expert had been examined in support of his statement."
We are of the view that the above decision is not helpful to the appellant's case. Only at the instance of the appellant, the documents-Exs. C-1 and C-2 were called for and the learned Judge compared the signature therein with that in Exs.A-1 to A-9. Apart from this, the learned Judge has also compared the signature found in Ex.A-31, a discharged pronote executed in favour of the plaintiff. It is not correct to say that in every case the court has to seek the opinion of an expert.
10. In State (Delhi Administration) v. Pali Ram, , the Supreme Court has held that, "...Although there is no legal bar to the Judge using his own eyes to compare the disputed with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert."
11. In Ramkrishan v. Mohd. Kasam, , the Division Bench of Bombay High Court has held though it is permissible for a Court under Section 73 to compare signature, a comparison of handwriting as a mode of proof of execution of document is very hazardous and inconclusive specially when it is made by one not conversant with the subject and without such guidance as might be derived from the evidence of experts.
12. In Ramdeo v. Dulari Pevi, a learned Single Judge of the Allahabad High Court has held that burden to prove its execution is on person in whose favour it is executed.
13. It is true that in order to find out the genuineness of the signature, it is but proper for the Court to get the opinion of the expert. However, we are of the view that section 73 enables the Court to compare the disputed signature with the other admitted or proved signatures. No doubt, the Court can also direct the concerned person in Court to write any words or figures for the purpose of enabling the court to compare the words or fixtures so written with any words or figures alleged to have been written by such person. Though the learned Subordinate Judge has not obtained the signature of D.W. 1 in the court at the time of his deposition, it is not disputed that only it was at his instance, two documents from Sholavandan Village Cooperative Bank and State Bank of India were summoned and marked as Exs. C-1 and C-2. Mr. Sreekrishnan, learned counsel for the respondent bank by relying on the evidence of P.W.1 Manager of the bank has vehemently contended that the plaintiff has discharged their initial burden. P.W.1 is an officer of the bank and it was he who sanctioned the loan after satisfying all the formalities. Apart from narrating the events with regard to sanctioning of loan, compliance of all the conditions and formalities, he has deposed in chief examination that the defendants 1 to 3 came and signed in all the documents in his presence. He deposed that, (Supplied) He deposed in cross-examination that.
We have already stated that P.W.1 is the manager and he was the concerned officer at the time of sanctioning of loan amount. In categorical terms, he has deposed that the 2nd defendant came to his branch along with defendants 1 and 3 and signed all the documents in his presence. As rightly argued by Mr. Sreekrishnan, there is no reason to dis-believe the version of P.W.1. Though Mr. S.A. Rajan, learned counsel for the appellant, has contended that he is an interested witness, after going through his entire evidence, we are of the view that the evidence of P.W.1 is probable and acceptable and the learned subordinate Judge is right in relying his evidence. In this regard, learned counsel appearing for the respondent bank has very much relied on the following observation of Their Lordships in Devadattam v. Union of India "....The Question of onus probandi is certainly important in the early stages of a case, it may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact most fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties."
As observed by the Supreme Court, in the light of the fact that evidence has been let by both parties on the question in issue abstract considerations of onus are out of place and the evidence of P.W.1 can be accepted, in Pran Lata v. Arhant Kumar Jain, the Supreme court has observed that the question of burden of proof has no importance at this stage, since both parties have adduced evidence and it is for the court to find out the truth on appreciation of the evidence let in. We have already observed that compared to the evidence of D.W.1, the evidence of P.W.1 is more probable and acceptable. We have also observed that except the appellant/2nd defendant, no other defendants contested the suit and failed to establish their defence. The 2nd defendant as a co-obligant nothing prevented him from summoning the other defendants in support of his plea. Admittedly, except the ipsi dixit of his oral evidence, he has not chosen to examine any one to corroborate his claim.
14. With regard to expert's evidence, in S. Gopal Reddy v. State of A.P, , Their Lordships have held thus:- (Para 27) "..., The evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering 'conclusive' proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab, . while dealing with evidence of a handwriting expert, this Court opined (at p.1093):
"We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law...."
15. In Ajjt Savant Majagavi v. State of Karnataka, after considering section 73 of the Act, Their Lordships have held that, (para 37 and 38) "....The section (Section 73 of the Act) does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is dear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act."
It is clear that though normally the Court should not take upon itself the responsibility of comparing the disputed signature with that of the admitted signature, undoubtedly the Court is competent to compare the disputed signature with the admitted signature in view of Section 73 of the Act. However, if the Court has any doubt, it is incumbent on it to leave the matter to the opinion of an expert. Though the learned counsel for the appellant has contended that P.W.1 is not familiar with the signature of the 2nd defendant, we have already referred to the categorical assertion made by P.W.1, namely, that defendants 1 to 3 visited their bank and after complying with the formalities, all the 3 including the 2nd defendant put their signatures in the documents in his presence. In such a circumstance, we do not find any error or infirmity in the course adopted by the learned Subordinate Judge; hence the contra argument made by the learned counsel for the appellant is liable to be rejected. Further, the requirement of Section 67 of the Act is only that handwriting of a person must be proved to be his handwriting. In order to prove the identity of the handwriting any mode not firbidden by law can be resorted to. Two modes are indicated bylaw in Section 45 and 47 of the Act. Section 45 permits expert opinion to be regarded as relevant evidence and Section 47 permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. In this regard, the following conclusion of the Supreme Court in Gulzar Ali v. State of H.P. is relevant. Their Lordships have held that it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections namely Sections 45 and 47. They further observed that there can be other modes through which identity of the handwriting can be established. In K.S. Satyanarayana v. V.R. Narayana Rao, the Supreme Court has observed that wherein in a suit for recovery of amount alleged to be paid by plaintiff to the two defendants as a sale consideration of property, the plaintiff claimed that there was a document signed by defendant No.1 in favour of defendant No.2 authorising him to sell the property on his behalf and the defendant No.1 denied his signatures on the document and also on written statement and Vakalatnama, the trial Court could have decreed the suit at the stage of examination of witness instead of going into protracted trial and then dismissing the suit on the ground of absence of privity of contract between defendant No.1 and plaintiff. Trial Court should have immediately probed into the matter. It should have recorded statement of the counsel for the 1st defendant to find it out if Vakalatnama in his favour and written statement were not signed by the 1st defendant whom he represented. It was apparent that the 1st defendant was trying to get out of the situation when confronted with his signatures on the Vakalatnama and the written statement and his having earlier denied his signatures on the document in order to defeat the claim of the plaintiff. After saying so, Their Lordships have observed that falsehood of the claim of the 1st defendant was writ large on the face of it, and the trial court could have also compared the signatures of the 1st defendant as provided in Section 73 of the Act.
16. It is clear that though the Court has not obtained the signature of the 2nd defendant when he was present in Court and compared his signatures in the other documents, as discussed above, we are satisfied with the procedure followed by it and we are unable to accept the argument of the learned counsel for the appellant.
17. It is also relevant to refer the conduct of the appellant herein. Though the plaintiff bank had secured an interim order of attachment attaching the properties of the defendants, admittedly the appellant herein did not take any step to vacate the interim order of attachment and the fact remains that the said interim order was made absolute and the same was in force till the disposal of the suit. There is no tangible explanation for not taking appropriate steps for vacation of the interim order of attachment.
18. In the light of what is stated above, we do not find any merit in the appeal; consequently the same is dismissed with costs.